M. B. SHARMA, J. - (1.) AN important question of law is involved in the present criminal misc. petition as to whether the provisions of Section 12-A and 12-AA of the Essential Commodities (Special) Provisions Act, 1981 (for short 'the Special Provisions Act') will apply even to such of the cases where the contravention of any order made under section 3 of the Essential Commodities Act, 1955 (for short the 'e. C. Act') was committed before coming into force of the Special Provisions Act ?
(2.) THE Petrol Pump, B. C. Jain and Sons at Baran was inspected by the Inspector of Supply Department on January 20, 1980. At the time of said inspection some irregularities in maintaining the registers were detected by the Inspector and a complaint was filed by him before the learned Chief Judicial Magistrate, Kota on June 15, 1983. THE learned Chief Judicial Magistrate issued summons on the same day to the accused-petitioners. THE accused-petitioners filed the revision petition before the learned Sessions Judge, Kota which was transferred to the Additional District Judge, Kota. Before the learned Additional Sessions Judge a point was raised on behalf of the accused-petitioners that the court of Chief Judicial Magistrate had no jurisdiction to try the case in view of the provisions of the Special Provisions Act and it was only Special Court appointed under Section 12-A of the Act which alone could take cognizance of the offence. THE learned Additional Sessions Judge in his impugned order dated March 3, 1986 referring to the proviso of section 2 of the Special Provisions Act, negatived the contention raised before him on behalf of the accused-petitioners, hence this misc. petition. The special provisions Act was made to make certain special provisions by way of amendments to the E. C. Act for temporary period of five years for dealing more effectively with persons indulging in boarding and blackmarketing of and profiteering in, essential commodities and with the evil of vicious inflationary prices and for matters connected therewith or incidental thereto. The Special Provisions Act, contained in all 11 sections. Under section 11 of the Special Provisions Act for section 12-A of the E. C. Act as it stood earlier before coming into force of the Special Provisions Act, the Sections 12-A, 12-AA, 12-AB and 12-AC were substituted- Under section 12-A it is provided that the State Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette constitute as many Special Courts as may be necessary for such area as may be specified in the notification. Sub-section (2) of Section 12-A of the same Act provides that a Special Court shall consist of a single Judge who shall be appointed by the High Court upon a request made by the State Government and under its explanation the word 'appoint' shall have the meaning given to it in the explanation to Section 9 of the Cr. P. C. Sub-section (3) of Section 12-A lays down the qualifications for appointment of a Special Judge. Section 12-AA is as under:- "12aa - Offence triable by Special Courts- (l)-Not-withstanding anything contained in the Code, (a)- all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court. " (d)- Save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any Court other than a Special Court or the High Court. " The other clauses (b) to (f) of Sub-section (1) of Section 12-AA and Sub-section (2) to (4) are not relevant for the present purposes and they need not to be extracted. Section 12-AB deals with an appeal and provides that the High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXXIX and XXX of the Code on a High Court, as if a Special Court within the limits of the jurisdiction of the High Court were a court of case. Sessions trying case, within the local limits of the jurisdiction of the High Court. Section 12-AC has made the provisions of the Criminal Procedure Code, including the provisions as to bail and bonds applicable to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. This will be saved as otherwise provided in the Special Provisions Act. Section 2 of the Special Provisions Act is very relevant and is extracted as under".- "2. Act 10 of 1955 to have effect subject to certain provisions for a temporary period - - During the continuance in force of this Act, the Essential Commodities Act, 1955 (hereinafter referred to as the Principal Act) shall have effect subject to the amendments specified in Section 3 to 11: Provided that the amendments specified in Sections 7 to 11 shall not apply to, or in relation to, any offence under the Principal Act committed before the commencement of this Act and the provisions of Principal Act shall apply to, and in relation to, such offence as if those amendments had not been made. " A bare reading of the above extracted proviso to Section 2 of Special Provisions Act will show that the amendment contained in Section 3 to 11 in the Principal Act, which means the E. C. Act, shall not apply in relation to any offence committed before the commencement of the Special Provisions Act. A bare reading of the proviso to Section 2 of Special Provisions Act leaves no manner of doubt that so far as the offence under the E. C. Act committed before the commencement of Special Provisions Act is concerned, the amendment contained even in Section 11 shall not be applicable. It is under Section 11 of the Special Provisions Act that in place of Section 12-A in the E. C. Act, the present sections 12- A, 12-AA etc. have been substituted. Therefore, in my opinion if an offence under the E. C. Act had been committed before the coming into force of the Special Provisions Act then notwithstanding the fact that a complaint had been filed after the coming into force of the Special Provisions Act the provisions of E. C. Act as they stood before the commencement of the Special Provisions Act, would be applicable. Mr. Gupta, learned counsel for the petitioner has referred to the case of M/s. Ram Prasad Sharma and sons Vs. The State of Rajasthan (1) in support of his contention that notwithstanding the fact that an offence under the E. C. Act might have been committed before the commencement of the Special Provisions Act, the case will have to be tried under Section 12-AA of the E. C. Act as amended by Special Provisions Act by the Special Court appointed under Section 12-AA of that Act. He has gone even to the extent that even the pending cases will have to be transferred to the special Court. In the case of M/s. Ram Prasad Sharma and Sons (Supra), the learned Singe Judge of this Court (Hon'ble D. L. Mehta J.) held that Section 12-AA will apply and its provisions are mandatory. But it does not appear as to whether the learned Judge was dealing with a case where the offence was committed before the commencement of the Special Provisions Act or had been committed after the commencement of the Special Provisions Act. It does not appear from a reading of that case that it was in relation to an offence under the E. C. Act before the commencement of the Special Provisions Act or not. There can be no dispute that so far as the offence committed after the commencement of the Special Provisions Act is concerned, it has to be dealt with under Section 12-AA of the Act and none except the Special Court shall have jurisdiction to take cognizance of the offence. But so far as the offence under the E. C. Act committed before the commencement of the Special Provisions Act, the provisions of the E. C. Act will be applicable as existed prior to the substitution of Section 12-A by Section 12-A, 12-AA etc. of the Special Provisions Act. I am, therefore, of the opinion that in the instant case, the case relates to the period before the Special Provisions Act came into force, the offence was committed before the commencement of Special Provisions Act, the provisions of the Principle Act i. e. the E. C. Act shall apply as if the amendments introduced by Section 11 of the Special Provisions Act has not been made.
(3.) IN the instant case there is no dispute that the offence was committed before the commencement of the Special Provisions Act, the learned Chief Judicial Magistrate has jurisdiction to take cognizance of the offence and the provisions of Section 12-AA and 12-A of the Special Provisions Act shall not be applicable. There is no force in this Misc. Petition and is hereby dismissed. .;